Condemned by Law: Assassination of Political Dissidents Abroad

To date, customary international law recognizes four distinct crimes that rise to the level of “international crimes”: war crimes, genocide, torture and crimes against humanity.225 Pursuant to treaty obligations and customary international law, all states are obligated to exercise jurisdiction in order to prosecute or extradite alleged perpetrators of these offenses. While the Iranian government is not bound by the constitutive statutes of the ICTY, ICTR or ICC, it is not immunized from liability pursuant to the principles of international criminal law as reflected in customary law.226 Substantial evidence presented in No Safe Haven indicating the involvement of high ranking officials connected to the intelligence, security and other executive ministries of the Islamic Republic in the assassination of political dissidents abroad exposes these officials to criminal prosecution.227

The term “crimes against humanity” is defined in the Rome Statute of the ICC as one of the enumerated underlying crimes (i.e. murder, torture or persecution) carried out as part of a widespread and systematic attack directed at a civilian population.228 Pursuant to customary international law, war or “armed conflict” is generally not a required element of crimes against humanity.229 More importantly, crimes against humanity are treated as “international crimes” that may be prosecuted pursuant to the principles of universal jurisdiction.230 That is, they are crimes horrific and offensive enough to merit prosecution wherever the perpetrator is found.231 Under customary law, prosecution or extradition of those responsible for crimes against humanity is the responsibility and obligation of all states in the international community.232 This responsibility extends to the Islamic Republic of Iran, and any other state(s) directly or indirectly affected by the assassination and extrajudicial killings of Iranian dissidents abroad.

Murder has long been recognized as one of the underlying offenses of a crimes against humanity charge.233 Under customary law, prosecutors seeking a conviction for murder as a crime against humanity must establish: a) the actus reus (the underlying offense or prohibited act, in this case murder), b) that the act was committed as part of a widespread or systematic attack, c) that the act was committed pursuant to or in furtherance of a state or organizational policy,234 d) directed against any civilian population,235 and e) that the accused had knowledge of the attack.236 The prosecutor also must prove that the accused had the appropriate mens rea: intent to kill or inflict serious injury237 to the victim in reckless disregard of human life.238 Proof of premeditation is generally required, but the accused need not have premeditated the murder of a particular individual; it is sufficient that she had a premeditated intention to murder civilians.

[223]See Payam Akhavan, Beyond Impunity: Can International Criminal Law Prevent Future Atrocities?, 95 AM. J. INT’L L. 7 (2001) (providing a detailed account of the development of a truly international criminal justice system charged with prosecuting international crimes such as war crimes, torture, crimes against humanity and genocide).[224]See Lindsay Zelniker, Towards a Functional International Criminal Court: An Argument in Favor of a Strong Privileges and Immunities Agreement, 24 FORDHAM INT’L L.J. 988 (2001).[225]The Rome Statute arts. 5-8, supra note 46. In fact, it may be argued that the prohibition on the commission of all of these crimes has surpassed customary status and elevated to a peremptory norm (i.e. jus cogens) from which no derogation is ever permitted. See Karen Parker et al., Jus Cogens: Compelling the Law of Human Rights, 12 HASTINGS INT’L & COMP. L. REV. 411 (1989).[226]Criminal prosecution of individuals by permanent and ad hoc international tribunals has been on the rise since the Nuremberg trials. See George E. Edwards, International Human Rights Law Challenges to the New Criminal Court: The Search and Seizure Right to Privacy, 39 YALE J. INT’L L. 323, 340-41, 385-88 (2001).[227]See NO SAFE HAVEN, supra note 25.[228]Rome Statute art. 7, supra note 46.[229]“It is by now a settled rule of customary international law that crimes against humanity do not require a connectionto international armed conflict. Indeed . . . customary international law may not require a connection between crimesagainst humanity and any conflict at all.” Prosecutor v. Tadic, para. 141, Case No. IT-94-1 A, Oct. 2, 1995.[230]See, e.g., Amnesty Int’l, Universal Jurisdiction: Questions and Answers, December 2001, available atwww.amnesty.org/en/library/asset/IOR53/020/2001/en/dom-IOR530202001en.pdf (last visited Oct. 31, 2008).[231]See generally Lloyd Axworthy, Afterword: The Politics of Advancing International Criminal Justice, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL LAW 260 (Stephen Macedo, ed., 2004).[232]See Colangelo, supra note 183, at 163-65.[233]Rome Statute art. 7(1)(a), supra note 46. Underlying offenses recognized as constituting crimes against humanity include but are not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions (based on political, racial or religious grounds), and other inhumane acts. Id. at 7(1)(b)-(k).[234]Rome Statute art. 7(2)(a), supra note 46. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has concluded that the “policy” element often noted in international law is not a requirement element of crimes against humanity. Prosecutor v. Tadic para. 654, supra note 229.[235]Civilians must be the “primary object” of the attack. Prosecutor v. Naletilic and Martinovic para. 235, Case No. IT- 98-34-T, March 31, 2003.[236]Rome Statute art. 7(1), supra note 46. See also Prosecutor v. Tadic para. 626, supra note 229.[237]Prosecutor v. Kayishema and Ruzindana para. 133-34, Case No. ICTR-95-1-A, May 21, 1999. The mens rea for murder may also be satisfied if at the time of the killing the accused or subordinate intended to inflict grievous bodily harm on the deceased having known that such harm would likely cause the victim’s death. See e.g., ICTY Statute, supra note 184.[238]Prosecutor v. Popovic para. 41, Case No. ICTY-02-57-I, March 26, 2002.